Questions Sent To Incoming Chief Justice Marston Gibson

Chief Justice Designate Marston Gibson

Dear Mr Gibson,

Now that it is confirmed that you are to be the new Chief Justice of Barbados, the BU family has some questions to put to you. These questions are not political in nature, but solely about the judicial system which you are to head.

  • At present, when counsel wishes to commence proceedings or serve documents such as statements of defense, affidavits etc., it is required that they have these documents sworn at the Registry, obtain certified copies and then serve these by personal service on the other parties, either personally or on their counsel. Do you anticipate streamlining this by, perhaps, allowing such documents to be sworn before any attorney-at-law licensed to practice in Barbados, filing copies with the Court/Registry and then effecting service on the other parties by mail or fax, using an affidavit of service sworn by the person who posted the documents/sent the fax, as back-up?
  • At present, small claims matters are cumbersome. Do you anticipate introducing an internet system by which these matters can be filed and argued and, only where necessary, involve appearances? In other words, simplify the process of small claims so that litigants in these will not be disadvantaged if they choose to represent themselves, rather than incurring the (sometimes greater than the claim) expense of being represented by counsel?
  • It is clear that the case management system does not work. What changes do you anticipate introducing in case management?
  • There is a considerable back-log of cases before the courts (both civil and criminal). How do you propose to get rid of this back-log in general terms?
  • There are many cases that have remained part-heard for years. The usual excuse is that the judge has been assigned to assizes or has too heavy a case load. What measures do you propose to introduce to solve this problem?

Related Link:

A Dispassionate Clarification On The Appointment Of Chief Justice Designate Marston Gibson

  • Some judges exceed the timeline of 6 months within which to render judgment, sometimes by as long as three years and more. Is this a matter that you propose to address aggressively and what measures do you propose to take? What measures will be put in place to deal with habitually recalcitrant judges?
  • Alternative Dispute Resolution (ADR) is not used much in Barbados at present. How do you propose to bring ADR to the attention of litigants as a viable alternative to a full court procedure? Will there be a system of appointment or licensing by the courts for arbitrators? Will the decisions by these arbitrators be inspected by the courts from time to time to ensure that they meet the standards of justice that the public has the right to expect?
  • There have been many justifiable complaints against certain counsel by their clients. In some cases, these complaints have been upheld. Yet, the counsel concerned have continued their practice as if nothing has happened. What measures do you propose to introduce to deal with the professional standards of counsel and to impel the Barbados Bar Association to take more aggressive action?

We hope that you will find it possible to respond to some of these questions at least. Your appointment has raised the expectations of many people in Barbados that a moribund justice system will be resuscitated under your leadership. However, we do understand that these are early days and you may require time to settle into the job. Nonetheless, we would be grateful for any assurances and reassurances you can give us that we will once again enjoy an effective judicial system.

0 thoughts on “Questions Sent To Incoming Chief Justice Marston Gibson

  1. A follow up to your third last question, may I also enquire from Mr Gibson, what steps he would recommend to deal with a number of attorneya-at-law who have cases penting against them for amount other things fraud and if found guilty what compensation the victim will receive.

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  3. Questions like the one on filing and service can be very easily put in place simply by adapting the Ontario Rules and Forms.

    The small claims question, if something like that is done, will see the end of the careers of a lot of small lawyers and, as we are as a nation, overlawyered, this would be no bad thing at all.

    Case management. That is correct. It is not a good system. Once again, we ought to be looking to the Ontario system, which would suit our needs far better.

    I am going to pass on the next three, as I have already said quite enough on those points, and pass on to ADR. ADR has become, in England and Wales at least, one of the new money makers for lawyers. I was amazed at the number of law firms that now have whole departments dedicated to ADR. I was even more astounded by the number of young lawyers fresh out of law school who wish to specialize in ADR. When that happens, you KNOW there is a lot of money to be made from it – WHICH DEFEATS THE OBJECT OF ADR, which is to reduce the time and expense of court cases. I am equally amazed at the number of lawyers who, even without having had the advantage of studying the merits of a case properly, will start to suggest ADR. ADR at its best can save massive amount of time and money in achieving justice – and at its worst it can merely transfer the money that would have been spent on a court case directly into the pockets of lawyers. It also provides a very good source of income for lawyer who act as arbitrators and their pay for fulfilling what is in essence the role of the judge is FAR higher than any judge is paid. Therefore, I think that the question of Mr Gibson about ADR needs considerable expansion later on. ADR properly regulated, can be invaluable. Badly regulated, it can be a rip-off. And would anyone in their right mind give your average Bajan lawyer a shot at something that is a potential rip-off?

    On the BBA and its lack of effectiveness in adequately disciplining its membership, agreed.

    @David. I hope Mr Gibson will answer these questions, or at least some of them. More and more Bajans are moving to the blogs for hard news. Indeed, it seems to me that the only investigative reporting available to Bajans about Barbados, comes from the blogs. A society is weakened if it does not have a strong press and the only strength on the press that I can see, comes from the blogs.

    • Was Leslie Haynes so passionate when the former government appointed a practicing politician to the post? Let the politics begin. It will be an interesting Court System when we have Chief Justice Gibson controlling a court with many of his colleagues against his appointment. If only they would show the same backbone when dealing with the crooked amongst them.

      BAR ASSOCIATION PRESIDENT Leslie Haynes, QC, says any attempt by Government to amend the law to facilitate the appointment of any individual is wrong and an erosion of the rule of law.

      “It’s a curious situation where we are amending a bill to fit the man, rather than have the man to fit the bill,” Haynes told the DAILY NATION yesterday, referring to a SUNDAY SUN newspaper report that Government was heading to Parliament to safeguard the appointment of Marston Gibson as the next Chief Justice of Barbados by the end of next month.

      “Once we start amending qualifications to appoint a person, any person to any position, we start on a slippery slope, because then at the end of the day qualifications are unimportant,” Haynes added.

      Gibson, who was to take up the top judicial post at the beginning of January ran into a legal snag after it was discovered he did not meet all of the legal criteria to qualify.

      Under Section 7 of the Supreme Court of Judicature Act, anyone who wants to become Chief Justice or a Court of Appeal judge in Barbados must have been practising for no fewer than 15 years in a Commonwealth jurisdiction, or serving during the prescribed period as a parliamentary counsel or as a professor or teacher of law at the University of the West Indies, or at a school for legal education approved by the Judicial and Legal Services Commission.

      “The rule of law should be respected, and in amending the act to fit the man we are eroding, however slowly, or however small or however minute, we are eroding the principles of the rule of law.

      “Once that is gone, anarchy will take over,” Haynes said.

      In Sunday’s report, a senior Government official is quoted as saying that the Freundel Stuart Government believed Gibson was the best man for the job.

      The Opposition Barbados Labour Party says it will not support any ammendment to the law to facilitate Gibson’s appointment.

  4. Typical Leslie Haynes. He owes his QC to Owen Arthur, rather than to merit, so he owes someone. However, David, let me assure you that the majority of the Bar welcomes Mr Gibson and Leslie does NOT speak for the Bar. You may recall that Leslie tried his best to give the impression that the CCJ negative report on Barbados’ court system was attributable to Acting Chief Justice Moore, instead of to David Simmons. His motives are highly suspect and his tactics completely transparent. His comments in the Nation, like the Nation itself, are dismissable as political agendas. That he should use his position as chair of the BBA is reprehensible and, hopefully, will lead to the BBA booting his ass out.

  5. Mindboggling, why people cannot see that fundamentally there is a problem with adjusting a law to suit one individual. There is a purpose for the law being framed in the way it is framed, to ensure experience with our system and body of law to produce justice.

    Appointing a ‘recent’ politician did not break a law or require the adjustment of a law, if said politician has all the legal qualifications to execute the job, and whose reputation in the conduct of his legal profession is exemplary. If his conduct was not exemplary and he was not a politcian but he had the qualifications, he would not be suitable.

    Is this gov’t saying that there is absolutely no one else in B’dos or the region suitable to take this position. My question to Mr. Gibson is how comfortable is he with the gov’t seeking to change the constitution of Barbados to accommodate his appointment, which he has to pledge to uphold and safeguard. The absurdity of this strikes me, does it strike you?

  6. Leslie Haynes my foot. I cant stand that man. His irritating voice and blatant arrogance pisses me off. Why doesnt Haynes reurn to wherever he came from and pontificate there? We Bajans will decide who we want as Chief Justice. We voted a Government in to decide on these matters not you Haynes. As it stands lawyers are not the best people to take advice from as to who should be Chief Justice. Many lawyers are seen by Barbadians at home and abroad as common thieves and crooks. Haynes ought to persue cases of his colleagues stealing clients money everyday and stop talking johnnyisms. This lawyer thing where some very duncy but arrogant self opiniated jokers hold sway in our society must stop. I recall Brandford Taitt during the St. Joseph Hospital Enquiry saying he does not trust Leslie Haynes. Neither do I. Get lost Haynes.

  7. @Barman. I agree with you, sad to say. The justice system has completely broken down in Barbados and all the region knows it. This nonsense about objecting to the perfect man for the job taking over as chief justice is just unbelievable and holds us up to international ridicule. I can tell you now that I would not be at all comfortable with a candidate inside the box. I maintain my position that there is no need to change the law to confirm the appointment of Mr Gibson. However, going forward many years to the time when Mr Gibson retires, I see the change as forward-looking and desirable. It makes local candidates focus their attention on the justice system, rather than currying political favour. We have seen in the recent past the most blatant abuse of political favour and it has resulted in the demise of the legal system and the total lack of effectiveness of the bar association whose head unilaterally seeks to give the impression that he speaks for all. Well, he doesn’t and his self-serving, politically-motivated comments are nothing but hot air. And the public knows it.

    But you can expect things to hot up here with every Simmons and Arthur supporter seeking to spin the situation in order to persuade all that the justice system is in fine order. I don’t think that proposition will have many takers.

  8. So Bajan Truth you see nothing wrong with a sitting politician ascending to the Judges bench? A sitting politician who was actively involved in partisan political wrangling and was a member of Cabinet suddenly shedding his politician’s suit and donning the impartial robes of a Judge.

    More than anything else Thompson’s choice of Gibson supports Arthur’s choice of Simmons, both men thought that contenders for the job currently sitting on the bench were not up to the standard required at the time.

    We hope this “new broom” will sweep clean.

  9. BU, does it not strike you as strange that not a single lawyer has as yet come out in support of amending the law? Are they ALL politically motivated? Or is it you?

  10. Did the Owen Arthur administration adjust or amended the Act? If he did, well a precedent was set. However, if he didn’t amend the Act, what he did was morally wrong, but amending the Act just to choose who you want is looking for problems down the line. Even if Arthur amended the Act, two wrongs don’t make it right, all it does is weaken the Act and that is dangerous. I hope barbados can take politics out of this and see the negative effect such a move will have on this country.

  11. For the UMPTEENTH time, I am bringing to the attention of the public the unacceptable behaviour of VOB Moderator TONY “PHONY” MARSHALL.

    He, just a few minutes ago, abused, disrespected and denied WELL-KNOWN VOB caller “The Senator’ in the most disgraceful way, such that “The Senator” could not make his valued contribution regarding Mr. Gibson’s appointment!!


    VOB, are not the outcomes of previous undercover DLP Moderators Maxine, Harry, Vere, Matthew, Don, etc. enough evidence for you, that you should more properly vet these “impartial moderators” several of whom have openly stiffled and bludgeoned callers of another opinion.?

  12. What is this difference that Phony Marshall is making on Brass Tacks between qualifications and requirements? Is years spent in practice or teaching not a qualification? This is becoming a partisan political matter.

  13. @David. I am truly amused by:

    “Once we start amending qualifications to appoint a person, any person to any position, we start on a slippery slope, because then at the end of the day qualifications are unimportant,” Haynes added.

    Well, I suppose that Leslie would know all about that from when he was made a QC due to nepotism and blood, rather than legal excellence. To him, qualifications truly would be unimportant.

  14. There you go again slandering people, Amused. What is Haynes blood tie that got him QC. Is not Haynes one of the brightest lawyers of his group?

  15. @Anonus

    That is what is so admirable about lawyers in Barbados; they stick together. It is still time for some of them to veer from the group think.

    BU reaffirms our support for Gibson a highly qualified son of the soil.

  16. What are you supporting David? The DLP view or Gibson’s appointment with a change in the law or without a change in the law?

  17. The question should be:

    Are the qualifications, requirements and criteria that currently exists for selecting a competent Chief Justice of Barbados adequate in terms of education, background, experience, transparency, law and the constitution?

    If these things are adequate then a candidate either is qualified or is not qualified!

    To change a requirement to meet a specific candidate who would otherwise not be qualified is WRONG!!!!!!!!!

    …..and you cannot tell me that there are no qualified bajans for the position!

  18. @The Scout
    No law was changed or adjusted by the BLp legislation to accommodate David Simmons.

    Some of those same politicians if they do not hold a ministry stand as lawyers in our law courts to provide justice for all citizens. Law courts seldom decide political matters, and not running for office does not make a person non-partisan now does it? Look at the accusations being made of Leslie Haynes. Check your central bank governor, would you decribe his behaviour as partisan or non-partisan? Does cooling off for five years make you more or less partisan? Is there any evidence that partisan behaviour coloured the decisions of Mr. Simons while in office as Chief Justice. Do you know how previous Chief Justices’ voted?

  19. Spratt has descended from his Simmonsian heights once more. His evident worry causes me amusement – and great hope.

  20. @TooManyLawyers: “…..and you cannot tell me that there are no qualified bajans for the position!

    There is a very old saying: “Don’t fix want ain’t broken…

    But, as is empirically clear, the Barbados justice system is *systemically* broken.

    A corollary to the above old saying is: “Do fix what is broken.

    And, once again, let us please remember that Gibson *IS* *A* *BAJAN*!!!

  21. @David. I wish to join you in your support of Marston Gibson, a most excellent son of our soil from Christ Church who has been absent a while and now returns with his vast store of experience and scholorship to make us stronger and more respected.

    Mr. Tony Marshall’s political affilations and masters are well known, and if one was not aware certainly his conduct of the programme would leave a Bee in no doubt, and is obvious to people politically neutral. His conduct of the programme suits the standards of David Ellis and his agenda, as did all the other moderators – Matthew Farley, Peter Wickham, Eddie Corbin, Don Marshall and Maxine McClean who had their political petticoats showing.

    Marshall just let a caller get away with the nastiest remark to Mr. Linton, letting Mr. Linton know that the Levitical law would not allow a person with a disability to serve in the temple. Someone could call in to say that in response to Mr. Linton’s point about the judiciousness of appointing a Chief Justice who does not qualify for the job. Nasty. Not a rebuke. Just Sunday David Ellis with brass Tacks pleading the case of the disabled to be included in the society. Mr. Marshall obviously did not find the remark offensive.

    I am waiting to hear how Mr. Ellis will treat to this. whenever there is a complaint against Marshall he says he did not hear it, he excuses the behaviour every time. Ellis had a lot to say about comments made Mrs. Thompson,doing research that he can never do other topics which do not favour the DLP. I await his response to this disrespectful treatment of Linton by Marshall and the vile remark about physically challenged people not being acceptable to serve in the temple.

  23. @Spratt. I answer, but you don’t choose to hear. And if you think you are going to get me to expose myself legally with your clumsy and transparent questions, you ought to remember not to try to teach your grandfather how to suck eggs.

    However, the questions posed by David in the main report seem not to be addressed and what was apparently designed as a serious effort to examine the way forward for our justice system is getting bogged down in the quagmire of political partisanship. Looks to me like we will just have to wait for the input of people like Pat and Kiki to put forward views on how the present dead-and-gone justice system can be revived. Seems to me that few are looking at revival, but at the next general election. In the meantime, justice is being denied to the self-same people whose votes the politicians and their supporters will be wooing soon and, once the votes are won (or lost) the issue of the justice system will present itself only when someone feels they have been unfaired by the courts or by lawyers. Ultimately, if the rot continues (which it will not with Gibson as CJ) we will be faced with a judiciary whose imperative is politics and not justice. So maybe we could discuss ways to considerably speed up the justice system, reduce the cost and make it accessible to and protective of all, instead of the few with sufficient means to subvert it and treat it as their own personal property.

  24. The above comment under the name of bajan to the core is mine. That happens with a home computer, a large family and several users.

  25. Bajan Truth, worry not, for those with a mind observe how some conveniently use the bible as a sword in the most malicious and devious manner ever.

  26. @Checkit-out (1438): “So “Bajan to the core” = “amused”?

    It is interesting to note that you posted this within 60 seconds of the alleged post by “Amused” claiming a post by “Bajan to the core”.

    So, then, either “Amused” has been posting under two different names here on BU and “Checkit-out” is highly attentive, or “Checkit-out” is trying to distract from “Amused”.

    Which is it?

  27. @M: “Bajan Truth, worry not, for those with a mind observe how some conveniently use the bible as a sword in the most malicious and devious manner ever.

    Do you mean like this:

    “Therefore all things whatsoever ye would that men should do to you, do ye even so to them.

  28. Bajan to the Core does not mean it is Amused! It is a family computer, he has a wife and children who, I assume use the computer with their own monikers. He just did not change the log in. This happened with another blogger who used someone’s computer when he was in Bim and was accused of being that person. Lighten up folks.

  29. Re. Christopher Halsall post of Jan 25, 2011 at 2:58 PM;

    Purely happenstance. I merely read the post by “bajan to the core” which was a response to “Jack Spratt” seeking information from “Amused”, and realised that Bajan to the core and Amused were the same person.

    The timing was pure coincidence. I did not see Amused’s response before posting my conclusion. My reflexes and typing skills are not that good.

    I don’t think I was highly attentive and I certainly was not trying to distract from “amused”. Although it is surely an interesting data point that “amused” appears to be posting here under at least 2 names.

  30. Pat; This is getting very interesting.

    So you know the family situation with “bajan to the core” and “amused”? Are you a member of the same family? Do you use the same computer?

  31. @Checkit-out: “I don’t think I was highly attentive and I certainly was not trying to distract from “amused”. Although it is surely an interesting data point that “amused” appears to be posting here under at least 2 names.

    So, then, we must await the testimony of Amused.

    Do you, Amused, post under multiple names here on BU?

    • @spratt

      BU’s position on CJ Gibson has been represented from the get go. We can’t wait for him to sit on the Bench.

  32. @ david

    “Why doesnt Haynes return [sic] to wherever he came from and pontificate there?”

    Only last week I was talking about the anti-immigrant posturing on BU that all of a sudden became taboo when referring to Mara Thompson. It is alright for a ‘non-bajan’ to sit in Parliament, but not to comment on the appointment of the CJ? We have gone totally mad!!!
    This government can do anything, and I mean anything and we get on this blog and pontificate about good governance yet support the changing of an Act retroactively. Then again the illegal hiring of Arni Walters at BWA was treated as a non-issue.

  33. One final comment on Phony Marshall!

    Mr. Marshall, if you are reading this, I would urge you to more respectfully engage the callers to VOB’s “Down To Brass Tacks”, especially those whom you appear to deem to be supporters of the BLP. PLEASE DESIST from repeatedly saying to them, “Get thee behind me!”

    Because you are a PHONY, you always stop just short of saying the REAL biblical quote, “Get thee behind me Satan!” But isn’t that what you really mean, and how long will it be before DAVID ELLIS requests you to cease the use of such pejorative language to undeserving and decent callers?

  34. Bajan Truth

    Some of those same politicians if they do not hold a ministry stand as lawyers in our law courts to provide justice for all citizens.
    Of course politicians have a right to earn a living whether they are lawyers, doctors or double dipping consultants but I’ll bet that the lawyers who are MPs are very selective as to the type of case and client they take after they are elected.

    Simmons wasn’t just any politician he was the Attorney General who in one fell swoop went from being the Gov’t’s Chief Prosecutor to the country’s chief adjudicator without any “cooling off” period

  35. Sargeant. When he is cooling off he will become less political and more objective, and in cooling off he will be more competent. do you know how ridiculous that sounds. I recommend when choosing someone for office ensure they have qualifications, experience and background shows character. On this occasion it worked out, on another the person might not be right. Why is that a problem to you and a person not meeting the experience qualifications is alright.

  36. blogger above”This nonsense about objecting to the perfect man for the job taking over as chief justice is just unbelievable and holds us up to international ridicule”


    Do you not think that suddenly altering the law to suit a Government decision, ‘fait accompli’, will bring more ‘negative interest’ from the likes of international bodies and rating agencies?

    What do you think has kept Barbados seen as a stable state for years? The retience to tamper with the laws at whim and fancy.

    ‘IF’ we do this, I maintain (and agree with the President of the Bar) that the slippery slope will be created and you can be sure that international bodies will make a little footnote in their ‘barbados’ files.

    Is it so plain as day, althoug some with partisan leanings are exposing them clearly, only a fool would think otherwise.

    Constitution should only be changed after assessment, debate and consensus, as I have already said.

    NONE of that has taken place. *THAT* is cause for concern.

    As I said, it is not only what is done, it is HOW it is done.

    But as I said, dont listen to me. The feedback and repercussions will come.

    You can be sure.

  37. @Crusoe. Our legal system was debased when an attorney general was immediately made chief justice. There is no debasement when a judge without political affiliation, courted by both political parties, has lectured in law and the UWI for a number of years and has held a license to practice law in Barbados since 1981, is made chief justice. That is what international judicial opinion will take note of and react favourably, as it reacted unfavourably to a politician with no judicial experience being made CJ and leaving the justice system in one hell of a mess. So get real and smell the cawfee. By the way, laws change to reflect the needs of their societies. As the justice system is a mess due to political nepotism, any such change, unecessary though I consider it, is a matter of national emergency.

  38. @Amused ” By the way, laws change to reflect the needs of their societies.”.

    I never said they did not, indeed I noted the manner in which such *should* be changed.

    That you are an attorney of some years standing as you present, indicates disingenuity on your part if you fail to accept and acknowledge that the method of changing the law is relevant and indeed reflective of the state of government.

    Indeed, I am shocked that such a fundamental concept can either escape you, or be deliberately rolled over, for the appointment that you support.

    If the Constitution is so easily amended, then what the heck, get rid of it.

    As I said, assessment, debate and consensus.

    Like it or not, smell the ‘cawfee’ (as you put it), this is one fiasco and looks bad, however one wishes to paint it.

  39. I agree with Crusoe and Leslie Haynes.

    On another note, I do not think that the writer of this submission is familiar with the new Civil Procedure Rules.

    He wrote:

    “At present, when counsel wishes to commence proceedings or serve documents such as statements of defense, affidavits etc., it is required that they have these documents sworn at the Registry, obtain certified copies and then serve these by personal service on the other parties, either personally”

    It is true that originating documents must be served personally on the parties to the action but unless a rule stipulates otherwise no other document needs to be. For example, a defence or a notice of application or an affidavit can be served by e-mail or by fax. I also know of no rule requiring affidavits to be sworn at the registry. A defence need not be sworn at all (just certified as true by the maker).

    Also, in my view, there is nothing wrong with the case management system. But I know that Amused has other views.

    One thing that needs to change is the scheduling of chambers matters for the same time. Rather than schedule 10 matters for 10:00 and have counsel go in according to seniority, I think that they should schedule each interlocutory application for a different time. The notice of application can give an estimate of the time that counsel thinks the application requires and the matter will be limited to that estimated time.

    Barbados should also consider automatic referral to mediation. This means that parties will be required to sit down with a mediator and attempt to settle the matter before a case management hearing is scheduled.

    Some of these things may help with the back log but at the end of the day I think that there are just too few judges.

  40. @Crusoe. Having just read your assinine outpourings on a more recent blog (where you suggest that Habeus Corpus be done away with) let me tell you that it does not take a senior attorney, but a reasonably gifted 15 year old, to see the downright stupidity of your remarks.

    “I never said they did not, indeed I noted the manner in which such *should* be changed.

    That you are an attorney of some years standing as you present, indicates disingenuity on your part if you fail to accept and acknowledge that the method of changing the law is relevant and indeed reflective of the state of government.”

    The people vote a government into office. It has a majority. It decides in the interest of the country to change the laws. It has the mandate of the people (from the ballot box) so to do. It changes the law. Matter done. That is the method on which we, a democratic society, operate.

    Clearly you completely missed the point. No one is suggesting changing the Constitution. The Constitution does not factor into this matter. What is being changed is a simple Act of Parliament. The Supreme Court Act, which, incidentally, is subject to almost yearly change (amendement). However, there is a distressing move afoot by certain parties to give the impression that it is the Constitution that is being changed and thus to hoodwink the Bajan people. Well, sir, we are MUCH smarter than you think.

  41. I said:

    “It is true that originating documents must be served personally on the parties to the action but unless a rule stipulates otherwise no other document needs to be.”

    Sorry, I should have added that originating documents (documents which start court proceedings) must be served personally on a defendant as a general rule but a Claimant may serve originating documents by some other method and then afterwards prove to the court that that method of service was sufficient to bring the claim to the attention of the Defendant.

    Also under the new rules documents can be filed by fax or post.

    My point is that some of the suggestions that the writer has posited are already provided for by the new CPR (which incidentally was implemented by the much maligned David Simmons)

    Unfortunately, many attorneys in Barbados are still used to the old system and do not utilise these provisions.

  42. @Crusoe “What do you think has kept Barbados seen as a stable state for years? The retience to tamper with the laws at whim and fancy.”

    So what is the problem if we now change a law if as you say there was a “retience to tamper” in the past. Yuh tink duh gine be changing laws like one a day vitamins?

    Truth be told Gibson is not a member of the ShadyLaneils FortsinGeorge club and may not fit in.
    There is a desire to maintain the status quo an dey like it so.

  43. @Amused, ”@Crusoe. Having just read your assinine outpourings on a more recent blog (where you suggest that Habeus Corpus be done away with)”

    Lol, go back and see PingPong’s response and my response to him.

    You are remarkably unperceptive .

    • BU has put the question before, what are the circumstances that would promote the change of a law/constitution byt the government? In this issue we should separate if the government made a mistake in not changing the law before* the announcement of Gibson was made. Most feedback from the legal beavers is complimentary to Gibson yet the ‘politically correct Bajan’ would demonstrate changing the law when it is being done for a just cause in our view. A qualified Bajan living overseas we would permit an aged old law to act as a blocker to him serving his country.

      On another note, are we saying PM Thompson, possibly Mia Mottley, who has been silent on this matter, Adriel Brathwaite and Fruendel Stuart are all operating (ed) on the basis of political expediency by appointing a qualified Bajan who has been courted by both political parties?

  44. @David. Point well put. It is all moot anyway, as Chief Justice Gibson will take office and, given his record and experience, we can look to see a very great improvement in the justice system.

    @Hants. Very good. Well put and, as always, amusing. Of course the “boys” are scared. The “old boy” network will not avail them this time. Also, frankly, there were quite a few of the boys who thought they were in with a chance of being the next CJ. One of them even said as much here on BU, to the extent that he WOULD BE the next CJ. I think I prefer the style of Gibson CJ who, when asked to comment upon BU breaking the news of his appointment, refused to say anything. Far better than having someone preempt everyone by announcing himself as the the new holder of the office – much to the horror of the responsible members of the Bar, I might add. But a few noses must be well out of joint. Possibly even that of Leslie Haynes, who, long on ambition and short on talent and reality, might easily have seen himself as Simmons’ successor – in no way does this impute that Leslie is incompetent, you understand, merely that he is not nearly as good as his QC has led him to believe that he is.

  45. David re your 4.50 am post above;

    I don’t think that anyone has said that Marston Gibson does not have all the requirements, except residency status, to be a very good CJ. He is apparently extremely talented and was apparently recognized as such by both Political Parties.

    The real problem, to me, is how he is going to reform the judiciary in the future and how he will get the unqualified respect of his peers in carrying out the mandate that BU and “amused” seems to have set for him.

    By his own words, he has declared that he wants to be beholden to no one which presumably implies no institution also. The fact is that by changing the law to allow him to totally qualify for the post he MUST be beholden to the DLP Government. If the BLP parliamentary members assent to the change he might have some comfort in believing that the Government as a whole was in favour of the changed law and that he would be beholden to a nebulous “Government” only which he would be serving and not the DLP specifically. But if, as seems the case, the BLP members are against the change in law, he would not have that leg to stand on. He would definitely be beholden to the DLP alone for making it possible for him to qualify for and get the post. And remember, that is what he has categorically implied that he does not want.

    If the DLP changes the Law and Mr. Gibson takes the post it would say something about Mr. Gibson that would not bode well for a Justice system that he will be presiding over.

  46. I do not know Mr. Gibson i can only consider the views of bloggers that he will be so wonderful and transformative. The yhav eot provided reasons for this overwhleming vot eof confidence. However i am sure that he is diesred becasue he has demonstrated he has qualities. If both parties have courted him, one took him the other did not says something. No one is saying he should not serve Barbados , I am saying that to change a law to accommodate one person is madness. If the law is archaic and no longer serves its purpose then modify the law on that basis. However how do you deal with the anomaly that persons you have to manage have more experience than you do in the common law. Is that not awkward? Does it make for good working relations? The question that has not been answered is does Barbados not have other qualified individuals to hold the post. Why did this gov’t not do proper work before offering him the position. Why is this sloppiness so acceptable to people.

  47. Another quick question. If he were a pilot seeking to fly a 747, had some 25 years experience flying, but not the requisite number of flying hours on a 747, would you hire him to fly a 747; would you change the requirement to accomodate him. Just asking?

  48. Bajan Truth,

    “Why is this sloppiness so acceptable to people?”

    Because the Dems and their supporters believe that Barbados belongs to the DLP and that they therefore can do anything and the people would accept it.

    To justify what they want to do, I just heard Phony Marshall on Brass Tacks saying that some law was changed to accommodate Mia Mottley and some others on their return to Barbados and surprise, surprise, he could not remember who the other persons were. He aint call Phony for nothing.

    Were I Mr Gibson, I would not accept the position now.

    By the way, did I read right, some notable bloggers on this thread were questioning Mr Leslie Haynes’ nationality, telling hin to go back where he came from after they so readily accepted and defended Mara Thompson’s right to be in our parliament. Wow!!

  49. @checkit-out. “By his own words, he has declared that he wants to be beholden to no one which presumably implies no institution also. The fact is that by changing the law to allow him to totally qualify for the post he MUST be beholden to the DLP Government.”

    With respect, that is NOT what Mr Gibson or implied. In Barbados, we appoint judges who, after they are appointed, are expected to act completely independently of the Government or anyone else for that matter. In the USA, judges often are elected (not appointed). To be elected takes considerable patronage and money, usually from corporate sponsors (think election of the US president). To me, this is a great failing in the US justice system, as it encourages judges who are far more versed in politics than in jurisprudence. The thrust, as I understand it, of Mr Gibson’s comment was that he wished to hold an appointed position so as to be able to render completely impartial and even-handed justice where, in years to come, he might adversely rule against Freundel Stuart in a case, without he was under any obligation. After all, he owes his appointment to the Government of Barbados representing the people of Barbados, not to any political party or individual. Thus is the independence of the judiciary maintained. So, I completely deny your assertion that the appointment of Chief Justice Gibson makes him judicially beholden to anyone. And that is the way he wants it. And that is the way Bajans will certainly also want it.

    @Apollo 13. Laws are changed to reflect the needs of the society. This change is, in my oft-stated view, unnecessary in this case, as Chief Justice Gibson has been licensed to practice law in Barbados since 1981. The change of the law at this juncture is for the future good of Bajans and also to remove any and all politically-motivated question that might slow down the work of extensive rebuilding that Chief Justice Gibson will need to carry out.

    As for Leslie Haynes or any other Citizen of Barbados, irrespective of where they come from, he has all the rights of any Bajan, regardless where they are born. We Bajans go to other countries and take out citizenship in those countries where we are allowed to ascend to whatever heights we can attain, save and except that of President of the United States. However, it does not prevent us from becoming attorney general of the United States or, like Marston Gibson, a judge. If Marson Gibson was Austrian by birth and a bodybuilder, he might even have become governor of California – remember, Sidney Poitier, Bahamian-born, was once US ambassador to Japan. So are we going to be so insular as to reject legal Bajan citizens because they were not born here? Time to grow up.

  50. Appollo 13;
    I heard Tony Marshall and It seems to me that he was reading an email from a listener. What I found very strange at the time was that he did not question the “facts” provided in the email. Such as is it true that a law was changed to allow Mia Mottley to practice? What law was changed? Who were the other lawyers that benefitted from the change? Which administration made the change to the law? What are the real parallels between that alleged change to the law and the current one that would change the law for one man?

    However, taken on the whole, I do not find that Tony Marshall is blatantly partisan in the call in show. I think he is probing and sometimes goes overboard, but generally he is quite fair. I also consider David Ellis to be an excellent host for the programme. To my mind Dennis Johnson is the best however.

  51. Amused re. your post of Jan 27, 2011 at 1:13 PM;

    Read my full post.

    With due respect, I still maintain, as a layman, that if Mr. Gibson is appointed in a situation where the only impediment to his appointment was a provision of the Law and that Law is amended by the DLP, without BLP support, to remove that impediment, he must of necessity be beholden to the DLP, whether he wants to accept it or not.

    However, if the change in law had the full blessing of the BLP he would only be technically beholden to “the Government” which would be his employer and this would therefore be of little consequence except in any putative case brought by persons against the government (Wait, are’nt there several cases like that? Including the famous Al Barrack one? Would the manner of his qualifying for the job suggest to some lawyers that he might have compromised himself in almost any ruling he will give on cases involving the government.)

    It still looks like a slippery slope to me. But what do I know?

    The only solutions to the problem to me are:

    Don’t amend the law and use the strategy you suggested sometime ago on this blog to appoint Mr. Gibson and take your chances on challenges re. the legality of the appointment.

    Rescind the offer of the job and move on to the next most qualified candidate.

    Amend the law to apply for future candidates for the post of CJ.

  52. Why do we keep saying that Gibson is “qualified”? Is that not the point at issue? If you mean academically qualified, there are no such requirements in the law…

  53. Amused;

    On second thought, my use of the word “beholden” was probably wrong. “Beholden” suggests that the “beholdee” operates as if the agency from which he received favourable treatment is somehow holding a whip that they can use to punish any transgressions or have other carrots that might be witholden if the “beholdee” doesn’t do what they require. In the judiciary evidently, once appointed, a CJ would, by statute and tenure, not have to fear or look forward to any such action and therefore he should not be seen as being beholden to anyone.

    But would the persons who might bring an action against government see it in that light? Or would they fear, even if mistakenly, that the manner of the appointment of the CJ might presage the possibility of a ruling against their favour whatever the merits of their case?

    Remember in Law appearances count for much.

  54. @checkit-out. I understand your point, but respectfully disagree. The Government of Barbados is the party in power. The other side is the opposition. It is not the government. Now the opposition, if it wins enough seats, can become the government (always does become the government). What you are proposing is a situation desirable if one is amending the Constitution, but for the amendment of an act, that is the function of the government – the government in power with the mandate from the electorate to rule. The Act in question has been frequently amended in order to better serve the people of Barbados. Why not now?

    There is no doubt that Gibson CJ’s appointment does not need a change of the Act, to most people. However, why should the government leave the door open to a legal challenge through the courts and possible appeals, all taking YEARS, while the justice system remains dead and gone to the detriment of Bajans of all walks of life?

    At the time that it was known that Marston Gibson had been offered the job, Mia was leader of the opposition, not Owen. Mia has been very silent on the matter, but it is generally known that she was consulted on behalf of the opposition. There would be a record of such meetings. I note, however, that it was only after Owen took over the opposition that questions were raised about Marston Gibson.

    It is all political – an effort to score points. At the expense of the justice system. That really is sad.

  55. Amused;

    Thanks for understanding my point. It is not often that people say they do.

    It seems that I have been labouring under a misconception for a very long time. That is, that the Government is constituted by both the Party in Power and the Opposition and that the Government is not the DLP at one time and the BLP at another. Indeed, it seems to me that the Jamaica Government, in the Manatt affair (re. lobbying for the drug kingpin in the state – Dudus Coke) seemed to have the same understanding of the Government vis.a.vis the Party in Power as you have.

    I wonder, if that view is accepted by the legal fraternity.

  56. There is no doubt that Gibson CJ’s appointment does not need a change of the Act, to most people.

    I think most people think the act needs to change to allow him in. Goverement actions to change to law even if under extreme caution would make people think the law need to change to let him in.

  57. Amused, These most people do not include the AG, the President of the Bar, Sleepy Smith, the former AG, nor any of the serious legally trained contributors on BU… Apart from you, who else thinks this?

  58. Why are they so quiet though? All of these “many” are afflicted with silence in spite of the currency of the matter, leaving you to carry the fight?

  59. @Anonus: “I do not agree Chris. What would give you this impression?

    Oh, I don’t know…

    How about three Bajan judges allegedly being sued for not executing their duties in the time appropriate?

    How about Jamaica being able to censure Barbados for our ineffectual courts?

    How about those many away who have to hire local lawyers to get business done here, only to claim themselves ripped off with absolutely no effective recourse?

    Perhaps. Just perhaps. It’s time things are done a little differently here in little ‘d Bim.

  60. Let’s say that when Mr Gibson is appointed C.J. the barbados government put back the Al Barrack case back in court, and the new C.J sides with government, what would be the general public perception? Al Barrack can then appeal to the C C J and if the reverse the decision, what will the government do? pull out of the C C J ? The whole scenerio will make Mr Gibson look very silly and the governmet shakey .

  61. David re. your post of Jan 27, 2011 at 4:26 PM;

    At the risk of sounding like an apologist for the BLP. The two cases are miles apart. In the current case there is a projected amendment of the law to accomodate the prospective candidate (even if it is likely to be an improvement in the law) while there was no such amendment in the case of David Simmons, as far as I am aware.

    However, you are right re. the fact there would have been a perception that David Simmons would be “beholden” to the BLP on many grounds, perhaps the least of which would have been the manner of his appointment. Therefore the BLP would have acted egregiously in making that appointment in my point of view.

    But two wrongs don’t make a right.

    One shouldn’t approbate and reprobate in practically the same breath, on the same general topic as Brandford Taitt would have said.

    But I have been noticing that the current administration is engaging in numerous bad practices which they deplored in the BLP administration but are justifying them on the basis that the BLP did it so its allright for them to do it too.

    Appointing David Simmons almost straight from an AG post, and being clearly identifiable as a BLP top man, to a CJ position was wrong. However, It is even more egregious to change the law to accomodate the new CJ and the David Simmons appointment cannot justify or be used as justification for the current proposals.

  62. While we’re debating over Mr Gibson, the interest on the Al Barrack payout is increasing and no one is taking note of that. It must be around $ 85 mil right now. How will the government get this albatross placed by the BLP off their necks; not by appointing Mr Gibson. Remember Mr Barrack has world courts he can go too, we’re playing with fire or maybe now it’s dynamite.

  63. The Scout: “Let’s say that when Mr Gibson is appointed C.J. the barbados government put back the Al Barrack case back in court, and the new C.J sides with government, what would be the general public perception?

    Let us all please consider another possibility…

    The CJ decides against the government.

    What then would be the public’s perspective?

    I, personally, *so* hope this comes off.

    Just so we all can watch the fireworks….

  64. Checkit-out
    I’m disappointed in David for such simplistic reasoning, yes, the BLP was wrong but show be the law or act that they broke, however, the DLP is amending a law or act to please themselves, THIS IS WHERE THE MISTAKE COMES. Has the act/law been amended a few moths ago and then the appointment of Mr Gibson was announced, there would have been some objections but not as forceful as it is now
    But two wrongs don’t make a right
    Not only two wrongs don’t make a right, the DLP was VERY critical of some wrong doings and they promised us that there will be a change, we though that change was for the better but the perception generally is that it is for the worse. Come on DLPites you can do better than that.

  65. Christopher
    I too, I’m eagerly awaiting this scenerio to unfold. To your question, I would say this (1) in case the new C.J goes in favor of Al Barrck, it would make him look real genuine but the public of Barbados will be face with further taxes to offset the backpay for Mr Barrack (2) in case the new C.J goes in favor of the government, then the perception would be that that is the reason he was so appointed, this would obviously not be the end of the case, in fact this would open a new can of worms. In either scenerio, the government is going to get the nasty end of the stick. While it was no fault of theirs, it was inherited, they knew about it and they should have had a plan to deal with it; that is the harsh reality of government.

  66. Christopher Halsall re. your post of Jan 27, 2011 at 5:17 PM;

    You said
    “Let us all please consider another possibility…..The CJ decides against the government. What then would be the public’s perspective?”

    I suspect that a significant number of the public would conclude that there was such a strong case against the Government that the CJ couldn’t rule otherwise and be taken seriously as a learned Judge.

    The problem will lie in where both sides have a good case and the perception that the CJ might not be impartial in his ruling is what would then matter and what we are discussing.

    • @checkit-out

      The reference to Simmon’ appointment was not to make an all fours comparison but to show that a person who might have been perceived as beholding to Owen, his boss just a few months earlier, was appointed CJ. It was to rebut that part of your ‘beholden’ argument.

  67. This matter carrys great international implications and can adversely effect the Barbados qualifications on the World Scene. This means this country can quickly move from being highly respected to being highly disgraceful. This needs some level of maturity to overcome this problem. This thing about, it’s a BLP problem or you have the government now so deal with it, will not solve the problem, meanwhile the money keeps growing and growing. SHOW YOUR EXCEPTIONAL QUALIFICATIONS MR GIBSON

  68. David
    If you slap me in my face for no apparent reason and I stab you, would I be right for so doing? Further more wouldn’t it be true that my act was worse than yours? Therefore it stands, the BLP was WRONG but they didn’t break or amend any law to have Mr Simmons appointed; in Mr Gibson’s case, this is what has to happen and THAT IS MORE WRONG. Plus this is the party that the majority of bajans voted for to clean up acts like the one with Mr Simmons, now they have surpassed the BLP’s nastiness.

  69. Scout said:

    “Let’s say that when Mr Gibson is appointed C.J. the barbados government put back the Al Barrack case back in court, and the new C.J sides with government, what would be the general public perception?”

    Wasn’t the Al Barrack matter already decided by the Court of Appeal?

    I thought so, but I could be wrong.

    If I am right, the matter cannot be adjudicated again at that level. In other words, the new CJ would never sit on a panel of judges asked to decide that matter.

  70. Anonlegal
    Can the format be changed? New C.J new laws for appointment; new C.J new laws of appeal. Remember U.S law, O.J was aquitted of murder but he was brought on a lesser charge and found guilty, with the new evidence pointing towards him being guilty of the first offence. In barbados we drive on the left side of the road, in the U S they drive on the right side of the road. Very often I see tourists here in Barbados driving on the right side of the road, my first remark is they are from the U S. My point is it is difficult for a person to do one thing in one country and change immediately to do something different in another country; even bajans who stay away for a while find it hard to adjust. Remember that Mr Gibson, you will be driving the vehicle of justice in barbados remember which side of the road you are legally bound to drive.

  71. David re. your post of Jan 27, 2011 at 5:58 PM;

    Yes, David. I understand that your post was an attempt to rebut my “beholden” argument and I’ve accepted that David Simmonds would have been considered as beholden to Owen Arthur who would have been the prime mover in engineering that appointment as well as being otherwise beholden to the BLP because of his long association at senior levels with that Party.

    However, as I tried to point out, The DLP shouldn’t condemn Owen Arthur for appointing David Simmons on the grounds that there was a strong potential for his rulings to be partial to the BLP given his long association with the BLP, and then appoint someone in a manner that would leave a blind man on a trotting horse to conclude that they were taking actions that would inexorably result in that person being willingly forced into a position that would make him technically beholden to them.

    As I’ve hinted in an earlier post, this DLP administration has taken some positions which seem to be at variance with upholding the mores and standards of a good government. A case in point is how David Thompson handled the CLICO matter. David Thompson was CLICO’s lawyer for several years and would have been privy to many of its dealings. When the CLICO matter erupted, in my view, the right thing for him to have done was to recuse himself from any input into the matter and let one of his other Cabinet Ministers handle it. Instead he set up an oversight committee that apparently had no power to stop hemmorhaging of funds from CLICO to senior Staff members while it sat. He also apparently did not stop CLICO management from thumbing its corporate nose at the Instutution set up to regulate Insurance companies. He refused to put CLICO under judicial management as other countries had done and He himself went around the OECS making promises that could be interpreted as suggesting that the Barbados Government would underwrite some of CLICO’s debts.

    Yes David both incidents were badly handled.

  72. @Amused, point taken, it probably is moot. No hard feelings I hope, you are learned in the law, not I.

    That said, what is to be is to be. I have become philosophical in my later years. It is all irrelevant, because we will all have move onward soon enough, even our current generation within 60 or 70 years, fully and comprehensively.

    Kind of morbid maybe. But, I have learned to distinguish what is important from what is not.

    And I am sure that Mr.Gibson is a great gentleman and a scholar. I really wish him well whatever the outcome.

    The only thing coming to mind as I post this, is that while we shall have moved on, our youngsters hopefully will be living on, and theirs too.

    What legacies we leave by our actions, shall hopefully be worthy.

  73. I think there is an element of inexperience in the Civil Service which may have contributed to the mess.

    I think there is also an element of fear of their political masters which has crept in over the past couple of decades.

    Older heads have now retired taking a great deal of the training and exprience with them. They also took with them a keen understanding of the law and that internal something that made them try their best to guide what are essentially ignorant politicians …. kind of like a Sir Humprey who actually acted for the good of their country.

    Appointing a CJ is not something that happens every day.

    All previous appointments are political appointments but the last one probably knocked the stuffing out of the Civil Service. It is difficult to understand how it happened. I think members of the Civil Service who should have stood their ground did not, …. or they just did not know what ground to hold.

    Let me give an example.

    Nicky Sealy at BWA was described to me as the only man in Barbados who would and did tell a PM … Tom …. to kiss his “expletive deleted” when Tom wanted to develop the Belle, a Zone 1 catchment.

    Nicky Sealy was an engineer who as I understand it spent time coming to grips with the use of the act which appointed him and applying it to do his job in the job to which he was appointed.

    He used the law to defeat a lawyer because he understood how it applied to his job and his responsibilites.

    I can’t think of a single character in the Civil Service, and by character I mean someone who would go toe to toe with a PM and win based on the law.

    I think they have been steamrollered into acquiescence over time and prefer to let the bosses take responsibility because the bosses say they will when in reality the responsibility is theirs to advise and direct the MP’s.

    If you wanted to pin blame for the apparent error in selection on who would you pin it?

    Isn’t it too simple to say David and Mia consulted and they should have known…. or should there also be a component to the consultation which comes from the Civil Service?

    I keep thinking of the program “Yes Prime Minister”

    Here is a light hearted version of an appointment of a Bishop.

  74. @Spratt. I happen to, mostly, agree with John. His comparison go the Yes Minister series of on point. You see, although civil servants are appointed by government, they do not change when the government changes. So the DLP has 14 years worth of BLP civil servants to contend with. And if the DLP remains in power for 14 years, any incoming BLP government will have the same problem with DLP civil servants.

    However, the appointmen of a CJ is very different. The Government has, wisely in my view, gone outside of the country to a highly qualified Bajan who has never been seen to have any political preferences in Barbados and who has been courted by both sides of the political divide. That, to me at least, demonstrates the desire to uphold the absolute necessity of judicial independence. For instance, the Governor General has to be above politics. Have you noted that when the Governor General is out of the country, the CJ acts in his stead? That speaks volumes for th absolute necessity of having someone who, himself and his court, are above politics. I recall one judge being overturned in Barbados on appeal simply for saying that his job was to carry out the wishes of the Government. This statement was roundly condemned by, and I speak under correction, Williams CJ, whose clear direction was that the function of a judge was to uphold the LAW, not the wishes of the Government. The learned judge had misdirected himself in Law by making such a statement. His judgement was tainted.

    Given the preoccupation and participation of almost all lawyers in Barbados with matters political, it makes total sense to ensure that the CJ (at this stage and in order to redress the balance of the blatantly political appointment of Simmons) is from outside the box. Believe me, over the course of the next years in order to revive a terminally ill justice system, there are going have to be a lot of changes. And, Sir Humphrey-like (with thanks to John) we know how civil servants embrace change.

  75. The point for me is that the Civil Service can be a force for good but it requires a level of competence, understanding and commitment which I fear may be missing …. it may have gone home with the old guard!!

    Sir Humphrey demonstrates in a funny way that the Civil Service can be incompetent but he also illustrates the possible process/mechanism which appointments could follow!!

    We need to be careful who we blame because there are alot of hands in creating this mess.

    While the buck stops at the PM, we need to remember that he has his advisors too!!

    David Thompson’s attention in the previous year would have been held by his illness.

    The background process of making sure everything was ok with the appointment seems to have stalled during his illness so we now have an issue.

    We have problems which may go deeper than any politician we choose to name or blame.

    Sir Humphrey has helped me understand this because he demonstrates how the Civil Service could work and brings home to me the role it plays in any Government appointment!! ….. probably totally untrue, irreverant and funny … but he makes me think about a process, not one or two persons.

    I am more inclined to think of a faulty process in the appointment.

    When applied to more mundane activities than appointing a CJ, it scares me more than any incompetent or corrupt politician could ever scare me.

  76. Whoever wrote the script for “Yes Prime Minister ” is a genius.

    I looked at the three parts of the episode, absolutely fantastic.

    Part 1

    Part 2

    Part 3

  77. Most Barbadians will agree that most of the lawyers in Barbados are thieves. It is an unfortunate statement but it is so. Ask many of those who live overseas that buy properties here who are ripped off or ask some of the real estate agents, they will tell you of horror stories in getting their money.

    I would be most surprised if the judicial system changes on the appointment of Mr Gibson. He will come up against a system that has done things a particular way and will not divert from that path. So if he is appointed he will either pack up and head back up north out of frustration or he will join the ‘club’.

    What is distasteful about this issue, is the attorney general who was Freundel Stuart at the time, would have had to advise Thompson on the criteria for the job. Mr Stuart had a right and a duty to research the requirements and to inform Mr Thompson on those requirements.

    He being an attorney either overlooked this requirement or because of arrogance or ignorance dismissed it, but also the attorney general’s office has legal advisors on staff as well. How comes all these people missed this important requirement. I believe that somebody in that office pointed out this requirement. This is the civil service.

    So either because of arrogance or ignorance they went ahead and offered this man a position and then found out that there is this requirement.No wonder you are now hearing all sorts of justification for the blunder from a lousy attorney general.

    My question is always with all the ‘ so called’ brilliant legal minds bout hey, ya can find one individual who could fill this post, or is it ‘dat dey too thieving’. LOL

  78. I see that there have been a number of excellent posts, particularly by John, Amused and Fran, on the likely or possible involvement of Public Servants in the Marston Gibson debacle.

    As a former Public Servant myself it strikes me that the general public is largely unaware that over the years inputs from public servants into certain matters is often very limited especially if such matters have significant political overtones. Some of this stems from the fallout of actual occurences such as a permanent secretary retiring and becoming a Minister in the following DLP Government and, not to be outdone but a few terms later, a Head of the Civil Service also retiring and becoming a Minister in a recent BLP Government.

    The result of such happenings , I think, has been a general distrust of the advice of some senior Public servants by members of the incoming Political Directorate, and many senior public servants who are perfectly honest and would give good non-partisan advice, are accordingly left out of the loop and their advice distrusted for little or no good reason.

    I therefore would not be surprised if there was little or no input into the choice of the new CJ by public servants, perhaps not even that of checking CV’s, etc. The Ministers and their personal Aides probably did all that they considered necessary, passing a fait accompli to the relevant authorities for rubber stamping. However, there is also a possibility that there might have been some little input by relatively inexperienced new public servants who might have been recently promoted primarily because of their perceived political allegiance to the new Party.

    I surmise this as it is impossible, if the background checks were even cursorily done, that David Thompson and Freundel Stuart would not have recognized from early that there was one thing lacking in Marston Gibson’s qualifications and accordingly programme the implementation of the necessary corrective actions. If the requisite background checks were properly done we would not now be in this debacle. The law would have been amended a good while ago and Mr. Gibson would have assumed the post.

    There are several signposts that have signalled the decline in the perceived professionalism of Senior Public Servants vis a vis their relationship with their “Ministerial masters”. Most of these have come about because of small steps taken by Ministers to abrogate greater authority unto themselves, often with little push back from the Public servants. The Group of Permanent Secretaries and related Grades have never taken it on themselves to defend their members in any disputes with Ministers. Permanent Secretaries are transferred at the whims of Ministers without any pushback. Ministers take on administrative roles when they are only supposed to have a policy role. etc. etc.

    Public Sector reform should not exclude looking carefully at the conditions of service, expectations, qualifications and relationships of the most senior members of the Public Service with MInisters. Salaries are not everything.

  79. @checkit-out: “Public Sector reform should not exclude looking carefully at the conditions of service, expectations, qualifications and relationships of the most senior members of the Public Service with MInisters. Salaries are not everything.

    Hear! Hear!!!

  80. @checkit-out. Your comment is well thought out and presented and is certainly food for thought. However, I have it on excellent authority that the requirements of the Supreme Court Act were discussed by the three parties concerned and opinions taken from very senior counsel outside of the political arena. All are and were satisifed that the legal opinion given here on BU in an earlier blog is correct. I believe personally that the government is changing the Act, simply because it is prudent to do so, in order to avoid frivilous legal challenges and appeals that might end up at the CCJ where the appointment of Marston Gibson would certainly be upheld. Also, going forward it makes sense to update the Act in this respect for the future. Thus is the circus of a legal challenge and its inevitable defeat avoided – decisions that might well point an admonitory finger at Barbados’ judges. Thus can something be done to remove the legal system from the vacuum it is currently in so that the justice and, more importantly even, the access to timely justice, for all Bajans, can be put in place. This, rather than having a broken system that has ground to a halt continue as it is for some years to come.

    So while I appreciate and thank you for your insightful comments on the civil service, I respectfully disagree with your conclusions on this particular issue.

    I have never had any political axe to grind, but it has not escaped me that, while the BLP was under the leadership of a responsible lawyer, there was no objection. Why now that it is under the leadership of a non-legal politician has it become an issue? Look at the timelines from the point where David reported here on BU who the next Chief Justice was to be.

  81. I have some legal training, Amused. If the advice of three Senior Counsel was taken (and I cannot imagine who these would be) why would the Government fear an action that could be disposed of within a few minutes?

    I thought I read somewhere that Cumberbatch or one of the other lawyers here on BU described that opinion as nonsense.

  82. An interesting related story:

    Australian Judges Heading to Belize
    Written by Shane D. Williams
    Thursday, 27 January 2011 00:00

    Part of Australia’s MOU with CARICOM involves the provision of direct assistance to individual countries within the region. Belize has reached out to Australia for support to the judicial branch of Government. Australia agreed to send two judges to join the judiciary which will be a huge lift to the undermanned bench.

    Last week at the Opening of the Supreme Court the Attorney General, Hon. B.Q. Pitts, explained that there was a delay in the selection process of those judges. Philip Kentwell, Australia’s High Commissioner to CARICOM, was able to give us an update on that situation. He said that a small number of judges have expressed interest in the job. However, “the hiccup has emerged where the experience and expertise of the applicants does not match the Terms of Reference that Belize has requested.”

    Kentwell said that the government is now working with the Commonwealth Secretariat to address Belize’s case load processing concern. He said, “I am encouraged that we will be in a position to address it at the Commonwealth Nations Ministers of Justices meeting this year.”

  83. @Anonus. I, with great respect, disagree with Jeff Cumberbatch. Something wrong with that? I could point out that, according to the Barbados Bar Association’s website, Jeff is not a member – he is not named. I am not aware, but I speak under correction, that he is or was ever a member of the Inner Bar. However, I am sure that, like Marston Gibson, he is licensed to practice law in Barbados. I am also very sure that he is a competent attorney and legal lecturer. So what? I disagree with him in this case.

  84. Here is Tony Best’s article which is a rehash of what we have discussed on BU.


    By Tony Best | Fri, January 28, 2011 – 12:00 AM

    Turn back the hands of the clock. It’s the mid-1960s and efforts to create a Little Eight Federation involving Barbados and its Eastern Caribbean neighbours are faltering.

    A death rattle is audible, in the wake of the collapse of the West Indies Federation at a time when Barbados’ independence is on the horizon.

    It’s a time too when the country needs a Chief Justice and Errol Barrow, the Premier soon to become Prime Minister, reaches out to an overseas Bajan, William Douglas, a puisne judge in Jamaica, who goes on to serve with distinction as Chief Justice.

    Now, fast forward the time to 2011 and again Barbados is searching for a Chief Justice. The current Government led first by David Thompson and now Freundel Stuart, decides Marston Gibson, a Rhodes scholar and a former law lecturer at the Cave Hill Campus is the person for the important post.

    Fair enough. But there is a hitch: he has spent too little time practising or teaching law in a Commonwealth jurisdiction and therefore doesn’t meet a purely technical requirement.

    Except for that legal hitch, Gibson, a judicial referee on Long Island in New York who taught several prime ministers, judges, attorneys general and other legal luminaries studying at the University of the West Indies, is considered eminently qualified.

    The obvious solution is to change the law, which the Government intends to do. It is that sensible solution which has triggered a raging debate, especially in legal and political circles.

    As one level-headed former judge put it the other day: “it has brought the wood ants out of the woodwork”.

    Some critics of the Government’s plans warn against changing a law to suit a single person.

    Others have asked: why go overseas to bring back a Bajan when the country has several judges now on the bench who can or should be appointed?

    A third group sees the issue in political terms, an opportunity to score points at the Stuart administration’s expense.

    But there are some factors, a set of core principles which should be considered. One is, does the language of the law meet the purpose for which it was intended?

    In this case, it doesn’t. It is doubtful that Barbados ever intended to allow attorneys from Rwanda, Cameroon, Mozambique, Brunei and the Sharia courts in Pakistan to become judges.

    They couldn’t have foreseen the dramatic changes in the Commonwealth that have occurred.

    Secondly, there is the issue of correcting mischief. The existing law has certainly spawned one by barring United States attorneys and professors who have not practised or taught in a Commonwealth country.

    Next is discrimination against a whole class of Bajans. The act certainly discriminates against Bajans who have served with distinction in the United States, a common law country but not in a Commonwealth jurisdiction.

    Imagine the highly unlikely situation in which Eric Holder Jr the United States Attorney General, whose parents are Barbadians and who has a court complex in St Joseph named for him being told that he wouldn’t qualify in Barbados because he didn’t practice in the Commonwealth.

    How about two eminent law professors in the United States, Stephen Leacock and Elwin Griffith, both of whom were born and raised in Barbados and taught at Cave Hill? The same barriers blocking Gibson would stand in their way.

    Interestingly, Bajan attorneys trained at the UWI and admitted to practice at home, are eligible to take the New York State Bar exams without further training  and if they are successful can practise immediately. That’s because Barbados is a common law country.

    That brings us to the broad question of Bajans living abroad. Some people have suggested that Barbados shouldn’t reach into the diaspora for a Chief Justice. But that reflects a narrow mindset that goes beyond the current issue.

    It’s a fact Gibson would be a beneficiary of any change in the law. But he wouldn’t be the only one.

    Scores of others are currently being discriminated against.

    Yes, special pleadings make bad law. But that’s not what’s happening here. With or without Gibson the law should be changed. (Nation News)

  85. David:
    Thanks for posting the article by Tony Best.

    He brought up a number of points that are interesting; eg. the oblique comparison of the appointment of Puisne Judge Douglas from Jamaica to CJ of Barbados by Errol Barrow (Puisne means Junior) as compared with the projected appointment of Judicial Referee, (i.e. Judge’s Assistant) Marston Gibson by David Thompson.

    The duties etc of a Judicial Referee are given in this article
    Look for Judicial referee.

    The article doesn’t seem to suggest that the typical judicial referee is normally called on to carry out any of the functions that many on this blog are suggesting will be Gibson’s mandate although I have absolutely no doubt and am confident that Gibson would be as successful in fulfilling David Thompson’s mandate as CJ Douglas was in fullfilling Errol Barrow’s mandate.

    I agree with Tony Best that “With or without Gibson the law should be changed.” But I have some difficulty in agreeing with him totally in his “Yes, special pleadings make bad law. But that’s not what’s happening here.” I think this whole comedy of errors originated as a special pleading even though It is not likely to make bad law.

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